Commentary On The Constitutionality Of Child Support

This is eloquent commentary by 'Socrateaser' on the constitutionality of child support, with reference to the ruling by judge C. Dane Perkins.

Judge Perkins' declared the Georgia Child Support Guidelines to be null and void as the guidelines violate numerous provisions of the constitutions of both the United States and the State of Georgia.

Judge Perkins noted in his order that in a study conducted in 14 South Georgia counties between 1995 and 1997, it was found that 82.2% of contested custody cases resulted in custody being awarded to the mother and that guideline support had an impermissibly discriminatory affect upon men based upon their gender.

Socrateaser's comments on this are illuminating and cogent, and we provide them here for your consideration.

Commentary By Socrateaser On The Constitutionality Of Child Support Orders

In order for a court to have a substantive due process right under the constitution to punish someone, it must first find that they have done something wrong.

For example, if you accidentally break a china plate while shopping, a court can hold you liable to compensate the shop owner for the plate. That's only fair. But unless you were recklessly running through the shop knocking things over for no good reason, the court cannot make you pay for anything more than just the plate.

Another example, suppose you pay to buy the plate which says "microwave safe." on the bottom, and the first time you put it into the microwave oven, it shatters. The court can hold the manufacturer liable to replace the plate, and it can even hold them to the cost of a plate that will actually do what is promised by the words "microwave safe".

But unless the manufacturer intentionally put that plate into the stream of commerce with the knowledge that it wasn't microwave safe, that's about all the court can do.

Now, relating this to child support, suppose a parent is suddenly serve with divorce papers from his/her spouse for no reason other than the spouse is bored with the marriage. And husband and wife have a minor child.

They go to court. The court finds that mother is the primary caretaker and father the breadwinner. Court orders custody to mother and the bill to the father.

What has the father done wrong so far? He worked hard, supported his family, etc. The only reason that the father is denied custody is that he is not the primary caretaker, because of an implied agreement between him and his wife that this is how the marriage would work.

Now the court orders guideline child support in an amount that is 30% more than what would have been ordered had the court had the discretion to determine support based on how the parents actually raised their child within the confines of the marriage.

Well, where is this extra 30% coming from? Why is the court ordering the father to pay MORE for the child's support than he did during the marriage?

Is the child being harmed by the divorce, because the father won't be living in the family home anymore? Well, the divorce was the mother's idea, so why isn't she being held liable for the child's injury?

Did the father voluntarily relinquish custody to the mother, thus harming the child's opportunity to have 50% custody with both parents? Nope, the COURT ordered the child into mother's custody, so once again, why is the father being held responsible?

Father in this scenario has done NOTHING wrong whatsoever. Not intentionally, not recklessly, not negligently, not innocently, NOTHING! The only reason that father is denied custody and ordered to pay support is because he agreed to do it within the contract of the marriage and now the mother has breached her contract and is bailing out.

He is having his wages garnished in an amount that has no reasonable relationship to anything, not even the maintenance of the child at the level achieved during the marriage.

Yet the law says he must pay according to the guideline.

This is an unconstitutional deprivation of property. Courts cannot order property taken from one person and given to another just because the recipient needs or wants it. The recipient needs to be harmed in some way to be entitled to compensation.

Well, there is a legal duty to support one's child. That's certainly reasonably related to the state's rational interest in the welfare of children. But surely there is some point where that duty fails to be reasonable. What happens if a court orders ALL of a person's money taken for child support. Is it reasonably related to the state's interest to deprive a parent of all of his/her wages? No that is irrational. No rational legislature in possession of the facts would make such a law.

Now the $64,000 question: When does the amount ordered for support become irrational? Every state currently has a slightly different answer, but in general, the answer is, "When the guidelines say so."

Judge Perkins has held that the GA guidelines are irrational in every conceivable manner and circumstance. I doubt this, because many people are paying guideline support in GA and they are still providing for themselves.

And, I'm not saying that the support isn't oppressive, I'm just saying that it's not quite as irrational as Judge Perkins has held, because people are managing to do it.

My theory is different. I say that doesn't matter if it's irrational or not. I don't care about the standard 14th Amendment constitutional tests, because my theory is that the guidelines are punitive. They impose a punishment in certain circumstances where none is justified.

Those circumstances are relatively narrow, i.e., when a parent is denied equal custody even though he asked for it, and even though he is perfectly fit to care for the child, in the other parent's absence.

Although the above scenario is narrow, the application exists for the majority of divorces. One parent almost ALWAYS receives less than 50% custody, and that parent is almost ALWAYS ordered to pay for that share of custody that he/she is denied.

There is only one word to describe such a circumstance. PUNISHMENT.

And there can be no punishment by a court absent a finding of intentional or reckless harm. This is what due process of law is all about.